Once upon a time, these Republicans swore they'd protect people with pre-existing conditions. Now the states they represent are attacking health coverage for the sick.
The Trump administration isn't exactly known for making wise or politically savvy decisions. But even for this executive branch, the Department of Justice's latest move on health care is a breathtakingly bad idea that seems guaranteed to backfire: arguing it's unconstitutional for the Affordable Care Act (ACA) to require health insurers to cover everyone, regardless of their pre-existing conditions.
In a highly unusual move, the DOJ is refusing to defend the federal law against a frivolous lawsuit filed by the attorneys general and governors of 20 conservative states.
The legal argument is downright kafkaesque: because Republicans in Congress got rid of the ACA's individual mandate, people who lack health insurance will no longer face a tax penalty.
But, the lawsuit argues, when the Supreme Court upheld the ACA in 2012, it did so because the individual mandate was considered a tax. No more tax, no more constitutional justification for the entire rest of the law, conservatives now claim — as if Congress never passes legislation that amends existing law.
By supporting this absurd argument in court, University of Michigan law professor Nicholas Bagley argued, the DOJ is demonstrating "enormous contempt for the rule of law."
But attacking the guaranteed issue of health coverage to sick people isn't just illogical and immoral. It's also political self-sabotage.
But even when the ACA was less popular overall, its protections for people with pre-existing conditions were so popular that most politicians — even Republicans who argued for repealing the law, and even Trump himself — talked about them like they were sacrosanct.
Sen. Lamar Alexander (R-TN), who chairs the Senate's health committee, once promised: "Pre-existing conditions will stay. There is no way the Congress is going to repeal pre-existing conditions."
It's not hard to see why Republicans made promises like Alexander's. It's pretty monstrous to tell people with diabetes, kids with cancer, women who have been pregnant at some point, and even migraine sufferers that they might be totally uninsurable, or at least have to pay astronomically high premiums, just like in the bad old days before Obamacare was passed.
Awkwardly for Alexander, however, his own state of Tennessee is one of the 20 states fighting to kill pre-existing conditions protections in court. The lawsuit is a major existential threat to basic health care coverage for nearly one-third (32 percent) of his non-elderly constituents, and for an estimated 52 million Americans under 65 nationwide, per the Kaiser Family Foundation.
And Alexander isn't alone: most of the Republican senators from the other 19 states attacking pre-existing conditions protections have also publicly supported them in the past.
Some, like John Boozman of Arkansas, said these protections were one of the few parts of Obamacare they wanted to keep. Others, like Lindsey Graham and Bill Cassidy, claimed that the Obamacare repeal bill of their choice would totally still protect people with pre-existing conditions — even though most of them were either mistaken or lying about that.
Still others, like Georgia's Johnny Isakson, vaguely argued that the private sector is somehow the best way to protect people with pre-existing conditions — even though Obamacare kept private-sector health insurance very much intact.
But few of them have said anything publicly about the attacks their states are making on this basic consumer protection for 52 million Americans.
To Alexander's credit, he finally spoke out against the lawsuit on Tuesday night — five days after the Trump administration filed the briefing instructing the courts to strike down protections requiring coverage for people with pre-existing conditions.
“The Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard,” Alexander said. “Congress specifically repealed the individual mandate penalty, but I didn’t hear a single senator say that they also thought they were repealing protections for people with pre-existing conditions.”
On Monday, CNN's Alisyn Camerota asked Cassidy point-blank whether people with pre-existing conditions would have a gap in coverage as a result of the lawsuit. Cassidy, who co-sponsored last year's ill-fated Graham-Cassidy Obamacare repeal bill, dodged the question with a bizarre claim that "subsidies will continue" for people who already have subsidized coverage — even though those subsidies are a key part of the health care law that Cassidy wants to repeal.
Here's a list of the GOP senators from the 20 states attacking health coverage for sick people, with links to statements they've made in the past supporting guaranteed issue of health coverage to people with pre-existing conditions:
Neither Cindy Hyde-Smith nor Roger Wicker appear to have made public comments supporting protections for pre-existing conditions.
Ben Sasse actually downplayed the importance of these protections, arguing that “social welfare safety nets” will somehow take care of people who become uninsurable due to pre-existing conditions.
Ron Johnson is an outlier; he once made a jaw-dropping comparison between people with pre-existing health conditions and people who irresponsibly crash a car.
UPDATES: This post has been updated to reflect statements by Lamar Alexander made after original publication.
Published with permission of The American Independent Foundation.